EXHIBIT 10.6d
EMPLOYMENT AGREEMENT
THIS AGREEMENT (together with all exhibits hereto, the "Agreement"), is
entered into on June 20, 2002 and effective on and after June 1, 2002 (the
"Effective Date"), by and between INFOGRAMES, INC., a Delaware corporation
having its executive offices and principal place of business in New York, New
York (the "Company"), and XXXXX X. XXXXX, the undersigned individual
("Executive").
IN CONSIDERATION of the mutual covenants and agreements hereinafter set
forth, the Company and Executive agree as follows:
1. Agreement Term.
The term of this Agreement shall commence on the Effective
Date and continue through May 31, 2007 (the "Agreement Term").
2. Employment.
(a) Employment by the Company. Executive agrees to be employed
by the Company for the Agreement Term upon the terms and subject to the
conditions set forth in this Agreement. Executive shall serve as the Senior
Executive Vice President of the Company and shall have such duties as are set
forth in Schedule A.
(b) Performance of Duties. Throughout the Agreement Term,
Executive shall faithfully and diligently perform Executive's duties in
conformity with the directions of the Company and serve the Company to the best
of Executive's ability. Executive shall devote Executive's entire working time,
attention and energies to the business and affairs of the Company, subject to
five (5) weeks' vacation per year and personal and sick leave in accordance with
Company policies as they may exist from time to time. Executive shall have the
title set forth in Section 2(a) hereof and shall report to the President of the
Company.
(c) Place of Performance. During the Agreement Term, Executive
shall be based at the Company's principal executive offices in New York, New
York and, in this regard, Executive shall maintain Executive's personal
residence in such city or such other location(s) within reasonable access to
Executive's place of employment.
3. Compensation and Benefits.
(a) Base Salary. The Company agrees to pay to Executive for
employment hereunder a base salary ("Base Salary") at the annual rate of
$400,000.00 retroactive to January 1, 2002. On July 1, 2003, and on each July 1
thereafter during the Agreement Term, Executive shall receive an annual review
and an increase in the Base Salary of five (5) percent or such greater amount as
may be determined in the discretion of the Company's Board of Directors.
(b) Bonus. Executive shall be entitled to participate in the
Company's senior executive bonus plan with a target bonus of 50% of his Base
Salary. Except as otherwise provided in this Agreement, Executive may be awarded
bonuses, stock options, or additional forms of compensation in the sole and
exclusive discretion of the Company's Board of Directors.
(c) Benefits and Prerequisites.
(i) Executive shall be entitled to participate in the
benefit plans and programs, and receive the benefits and perquisites, generally
provided to the Company's executives of the same level and responsibility as
Executive to the extent Executive is otherwise eligible under the terms thereof.
Nothing in this Agreement shall preclude the Company from terminating or
amending from time to time any employee benefit plan or program.
(ii) Beginning in the first full month following the
Effective Date and continuing thereafter during the Agreement Term, Executive
shall receive an allowance of $3,000 per month toward rental and/or expenses of
owning/leasing and maintaining an automobile (the "Car Allowance").
(iii) During the Agreement Term, the Company shall
provide Executive with an additional cash payment sufficient to cover any
deductible and out-of-pocket expenses for which Executive may become liable
under the Company's medical benefit plan and any federal and local income taxes
payable by Executive (using the highest marginal tax rate applicable to
Executive) as a result of such payment, including as a result of the associated
tax reimbursement.
(d) Travel and Business Expenses. Upon submission of itemized
expense statements in the manner specified by the Company, Executive shall be
entitled to reimbursement for reasonable business-related travel and other
reasonable business expenses duly incurred by Executive in the performance of
Executive's duties under this Agreement in accordance with the policies and
procedures established by the Company from time to time for executives of the
same level and responsibility as Executive. Executive shall have the use of a
Company credit card and be entitled to business-related air travel in business
class, or if not available, first class.
(e) No Other Compensation or Benefits; Payment. The
compensation and benefits specified in Sections 3 and 5 of this Agreement shall
be in lieu of any and all other compensation and benefits. Payment of all
compensation and benefits to Executive hereunder shall be made in accordance
with the relevant Company policies in effect from time to time, including normal
payroll practices, and shall be subject to all applicable federal, state, and
local payroll and income taxes.
(f) Cessation of Employment. In the event Executive shall
cease to be employed by the Company for any reason, then Executive's
compensation and benefits shall cease on the date of such event, except as
otherwise provided herein or in any applicable employee benefit plan or program.
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4. Exclusive Employment.
During the period of Executive's employment with the Company,
Executive shall not: (i) engage in any activity which conflicts or interferes
with or derogates from the performance of Executive's duties hereunder nor shall
Executive engage in any other business activity, whether or not such business
activity is pursued for gain or profit, except that Executive shall be entitled
to attend to personal affairs and investments in a manner which does not
unreasonably interfere with his responsibilities hereunder, and except as
otherwise approved in advance in writing by the Chief Executive Officer or the
Board of Directors of the Company; or (ii) accept any other full-time or
substantially full-time employment, whether as an executive or consultant or in
any other capacity, and whether or not compensated therefor.
5. Termination of Employment.
(a) Termination. The Company may terminate Executive's
employment for Cause (as defined below), in which case the provisions of Section
5(b) shall apply. The Company may also terminate Executive's employment in the
event of Executive's Disability (as defined below) or death, in which case the
provisions of Section 5(c) shall apply. The Company may also terminate the
Executive's employment during the Agreement Term for any other reason by written
notice to Executive, in which case the provisions of Section 5(d) shall apply.
If Executive's employment is terminated by reason of Executive's retirement or
voluntary resignation, the provisions of Section 5(b) shall apply. If
Executive's employment is terminated following expiration of the Agreement Term,
the provisions of Section 5(e) shall apply.
(b) Termination for Cause; Termination by Reason of Retirement
or Voluntary Resignation. In the event that Executive's employment hereunder is
terminated during the Agreement Term (x) by the Company for Cause (as defined
below), (y) by reason of Executive's retirement or (z) by reason of Executive's
voluntary resignation (other than voluntary resignation with Good Reason (as
hereinafter defined)), then the Company shall pay to Executive, within five (5)
business days of the date of such termination, only a pro rata portion of the
Base Salary and Car Allowance through such date of termination. For purposes of
this Agreement, "Cause" shall mean: (i) conviction of any crime (whether or not
involving the Company) constituting a felony in the jurisdiction involved; (ii)
engaging in any substantiated act involving moral turpitude; (iii) gross neglect
or misconduct in the performance of Executive's duties hereunder; (iv) willful
failure or refusal to perform such material duties as may be delegated to
Executive commensurate with Executive's position and responsibilities as set
forth in Section 2 hereof; or (v) breach of any material provision of this
Agreement by Executive; provided, however, that with respect to clause (iii),
clause (iv) and clause (v), Executive shall have received written notice from
the Company setting forth the manner in which he has been grossly negligent or
engaged in misconduct, he has willfully failed to perform his duties prior to
such notice or has materially breached any provision of this Agreement, and
Executive shall not have cured such gross neglect, misconduct, willful failure
or refusal to perform or breach, to the extent curable, within ten (10) business
days of such notice; provided, however, Executive's good faith inability to
perform shall not constitute Executive's willful failure to perform or a
material breach of any provision of this Agreement. For purposes hereof, the
term "Good Reason" shall mean (i) the modification of Executive's duties or
responsibilities
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as set forth on Schedule A, or the assignment to Executive of a position or
title other than Senior Executive Vice President of the Company or its successor
and parent company, if any, or (ii) any requirement that the Executive report to
any person other than the President or the Chief Executive Officer of the
Company or its successor and parent company, if any, or (iii) any requirement
that Executive perform services in any office of the Company or any successor or
parent company located more than 30 miles from the Company's executive offices
in New York City at the date hereof, or (iv) the failure by the Company, or its
successor or parent company, if any, to pay compensation or provide benefits or
perquisites to Executive as and when required by the terms of this Agreement, or
(v) a Change of Control as defined in Section 6(b)(i) through Section 6(b)(iv).
For purposes of the preceding sentence, the term "Company" shall have the
broadest possible meaning consistent with Section 9(j) herein.
(c) Disability; Death. If, as a result of Executive's
incapacity due to physical or mental injury or illness, Executive shall have
been absent from Executive's duties hereunder on a full time basis for either
(i) one hundred twenty (120) days within any three hundred sixty-five (365) day
period, or (ii) ninety (90) consecutive days, and within thirty (30) days after
written notice of termination is given shall not have returned to the
performance of Executive's duties hereunder on a full time basis, the Company
may terminate Executive's employment hereunder for "Disability". In that event,
the Company shall pay to Executive, within five (5) business days of the date of
such termination, only a pro rata portion of the Base Salary and car allowance
through such date of termination. During any period that Executive fails to
perform Executive's duties hereunder as a result of incapacity due to physical
or mental injury or illness (a "Disability Period"), Executive shall continue to
receive the compensation and benefits provided by Section 3 hereof until
Executive's employment hereunder is terminated; provided, however, that the
amount of compensation and benefits received by Executive during the Disability
Period shall be reduced by the aggregate amounts, if any, payable to Executive
under the Company's disability benefit plans and programs or under the Social
Security disability insurance program covering the same period of time.
In addition, in the event that the Company shall terminate this
Agreement pursuant to this Section 5(c) or by reason of Executive's death, the
Company shall thereafter pay to Executive or his estate, within five (5)
business days of the date of such termination, a lumpsum cash severance payment
equal to the aggregate Base Salary and Car Allowance that Executive would have
otherwise received if the terms of this Agreement were in effect during a period
of three (3) years following the date of such termination. Further, all options
previously granted to Executive pursuant to any of the Company's Stock Incentive
Plans or otherwise shall immediately vest and be exercisable by Executive in
full, and Executive (or his estate in the event of death) shall thereafter be
entitled to exercise such options for the balance of their respective terms.
(d) Termination By Company For Any Other Reason; Voluntary
Resignation for Good Reason.
(i) In the event that (A) Executive's employment
hereunder is terminated by the Company during the Agreement Term for any reason
other than as provided in Sections 5(b) or 5(c) hereof, or (B) Executive
voluntarily resigns for Good Reason, as defined in Section 5(b), then the
Company shall pay to Executive, within five (5) business days of the date
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of such termination or resignation, a pro rata portion of the Base Salary and
Car Allowance through such date of termination or resignation and, in lieu of
any further compensation and benefits for the balance of the Agreement Term or
thereafter, a lump-sum cash severance payment equal to the Base Salary and Car
Allowance that Executive would have otherwise received if the terms of this
Agreement had remained in effect for a period (the "Severance Period") equal to
the greater of (A) the remainder of the Agreement Term, or (B) three (3) years
from the date of such termination or resignation, plus an amount equal to 50% of
such aggregate Base Salary in lieu of bonus.
(ii) In addition to any severance amounts payable
hereunder, in the event (A) the Executive's employment is terminated by the
Company or its successor or parent company, if any, for any reason other than
properly for Cause as provided in Section 5(b), or (B) the Executive voluntarily
resigns for Good Reason, as defined in Section 5(b), then all options previously
granted to Executive pursuant to any of the Company's Stock Incentive Plans or
otherwise shall immediately vest and be exercisable by Executive in full, and
Executive (or his estate in the event of death) shall thereafter be entitled to
exercise such options for the balance of their respective terms.
(e) Termination Following Expiration of the Agreement Term. No
more than sixty (60) days nor less than thirty (30) days before the expiration
of the Agreement Term, the Company may propose a five (5) year extension to this
Agreement under identical terms to those contained herein. In the event that (i)
the Company fails to communicate such offer of contract extension to Executive
at least thirty (30) days before expiration of the Agreement Term; or (ii) the
Company communicates such an offer but subsequently revokes or refuses to
implement the terms of such offer, and in either case the parties do not
otherwise agree to extend Executive's employment, the Company shall pay to
Executive, within five (5) business days of the expiration of the Agreement
Term, in lieu of any further compensation and benefits, a lump-sum cash
severance payment equal to the Base Salary and Car Allowance that Executive
would have received if the terms of this Agreement had remained in effect for an
additional period of two (2) years following the expiration of the Agreement
Term, plus an amount equal to 50% of such aggregate Base Salary in lieu of
bonus. In the event that the Company communicates such offer of contract
extension to Executive at least thirty (30) days before expiration of the
Agreement Term, but Executive fails to communicate acceptance of such offer to
the Company before expiration of the Agreement Term and the parties do not
otherwise agree to extend Executive's employment, the Company shall pay to
Executive, within five (5) business days of the expiration of the Agreement
Term, in lieu of any further compensation and benefits, a lump-sum cash
severance payment equal to the Base Salary and Car Allowance that Executive
would have received if the terms of this Agreement had remained in effect for an
additional period of one (1) year following the expiration of the Agreement
Term, plus an amount equal to 50% of such aggregate Base Salary in lieu of
bonus. In addition, in the event that Executive's employment ends in a manner
that entitles him to a severance payment under this Section 5(e), then all
options previously granted to Executive pursuant to any of the Company's Stock
Incentive Plans or otherwise shall immediately vest and be exercisable by
Executive in full, and Executive (or his estate in the event of death) shall
thereafter be entitled to exercise such options for the balance of their
respective terms.
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(f) No Further Liability; Release. Payment made and
performance by the Company in accordance with this Section 5 shall operate to
fully discharge and release the Company and its directors, officers, employees,
subsidiaries, affiliates, stockholders, successors, assigns, agents and
representatives from any further obligation or liability with respect to
Executive's employment and termination of employment. Other than paying
Executive's Base Salary and car allowance through the date of termination of
Executive's employment and making any severance payment pursuant to and in
accordance with this Section 5 (as applicable), the Company and its directors,
officers, employees, subsidiaries, affiliates, stockholders, successors,
assigns, agents and representatives shall have no further obligation or
liability to Executive or any other person under this Agreement. The Company
shall have the right to condition the payment of any severance or other amounts
pursuant to Sections 5(c), 5(d), or 5(e) hereof upon the execution and delivery
to the Company by Executive of a release of any and all claims Executive may
have against the Company and its directors, officers, employees, subsidiaries,
affiliates, stockholders, successors, assigns, agents and representatives
arising out of or related to Executive's employment by the Company and the
termination of such employment, the form and substance of such release to be
reasonably satisfactory to the Company.
(g) Payment of Excise Taxes.
(i) If any payment or payments under this Agreement
or under any other plan, program, arrangement, or agreement of the Company is
subject to excise tax imposed by Section 4999 of the Internal Revenue Code of
1986, as amended from time to time (the "Code"), or any successor or similar
provision of the Code, the Company shall pay Executive an additional amount (the
"Gross Up") such that the net amount retained by Executive after deduction of
any such excise tax and any income or employment tax, social security tax,
excise tax, or interest or penalties imposed on amounts paid under this section
shall be equal to the full amount of the intended payment.
(ii) For purposes of determining the Gross Up,
Executive shall be deemed to pay federal, state, and local income tax at the
highest marginal rate of applicable taxation in the calendar year in which the
payment is made. The determination of whether excise tax is payable, including
whether any exception may apply, and if so the amount thereof shall be made upon
the opinion of tax counsel selected by the Company and reasonably acceptable to
the Executive, applying the following rules: (i) all payments shall be treated
as "parachute payments" within the meaning of Section 280G(b)(2) of the Code,
and all "excess parachute payments" within the meaning of Section 280G(b)(1) of
the Code shall be treated as subject to excise tax unless in the opinion of
counsel such payments do not constitute parachute payments or such excess
parachute payments represent reasonable compensation for services actually
rendered within the meaning of Section 280G(b)(4) of the Code in excess of the
"base amount" within the meaning of Section 280G(b)(3) of the Code or are
otherwise not subject to excise tax; and (ii) the value of any non-cash or
deferred payments or benefits shall be determined by an independent accounting
firm selected by the Company and reasonably acceptable to Executive in
accordance with the principles of Section 280G(d)(3) and (4) of the Code. All
fees, costs, and expenses of tax counsel and any accounting firm or other
advisor retained in accordance with this paragraph shall be borne solely by the
Company.
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(iii) The Gross Up, if any, shall be paid to
Executive in cash and in a lump sum within 30 days after the date on which the
amount thereof has been determined or is reasonably determinable by tax counsel,
and in any event not later than 45 days following termination of Executive's
employment; provided, however, that if the amount of Gross Up cannot be finally
determined at or before such time, the amount paid shall be the estimated full
amount of the Gross Up as reasonably determined by tax counsel in good faith and
in accordance with the principles of the preceding paragraph. If such an
estimated Gross Up is paid, or if the opinion of tax counsel is not finally
accepted by the Internal Revenue Service, then appropriate adjustments shall be
computed (with additional Gross Up, if necessary) by tax counsel based upon the
final amount of excise tax, and any additional amount due Executive as a result
of such adjustment (including any interest or penalties owed by Executive by
reason of any underpayment) shall be paid in cash and in a lump sum within 30
days of such computation. Any amount due the Company as a result of such an
adjustment shall be paid by Executive in cash in a lump sum within 30 days of
such computation.
6. Change of Control.
(a) Upon the happening of a Change of Control, as hereinafter
defined, all options previously granted to Executive pursuant to any of the
Company's Stock Incentive Plans or otherwise shall immediately vest and be
exercisable by Executive in full, and Executive (or his estate in the event of
death) shall thereafter be entitled to exercise such options for the balance of
their respective terms,
(b) For purposes hereof, Change of Control shall mean any of
the following occurrences:
(i) any "person" as such term is used in Section
13(d) and 14(d) of the Securities Exchange Act of 1934 ("Exchange Act"), is or
becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities of the Company representing 50% or
more of the combined voting power of the Company's then outstanding securities
(other than as a result of a merger or consolidation covered by clause (3)(i)
below in connection with a merger involving the Company which would result in
voting securities of the Company outstanding immediately prior thereto
continuing to represent more than 50% of the combined voting power of the voting
securities of the Company or the surviving entity (or its parent) outstanding
immediately after such merger or consolidation);
(ii) during any period of two consecutive years,
individuals who at the beginning of such period constitute the Board of
Directors of the Company, and any new director (other than a director designated
by a person who has entered into an agreement with the Company to effect a
transaction described in clause (i), (iii) or (iv) of this definition) whose
election by the Board or nomination for election by the Company's stockholders
was approved by a vote of at least two-thirds (2/3) of the directors then still
in office who either were directors at the beginning of the period or whose
election or nomination for election was previously so approved, cease for any
reason to constitute at least a majority thereof;
(iii) the stockholders of the Company approve a
merger or consolidation of the Company with any other entity, other than (A) a
merger or consolidation
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which would result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving
entity) more than 50% of the combined voting power of the voting securities of
the Company or such surviving entity (or its parent) outstanding immediately
after such merger or consolidation or (B) a merger or consolidation effected to
implement a recapitalization of the Company (or similar transaction) in which no
"person" (as hereinabove defined) acquires more than 50% of the combined voting
power of the Company's then outstanding securities; or
(iv) the stockholders of the Company approve a plan
of complete liquidation of the Company or an agreement for the sale or
disposition by the Company of all or substantially all of the Company's assets.
(v) notwithstanding anything to the contrary in this
Agreement, the merger or consolidation of the Company with, or acquisition of
securities of the Company representing substantially all of the combined voting
power of the Company's then outstanding voting securities by, an affiliate of
the Company.
7. Confidential Information; Non-Solicitation.
(a) Existence of Confidential Information. The Company owns
and has developed and compiled, and will develop and compile, certain
proprietary techniques and confidential information which have great value to
its business (referred to in this Agreement, collectively, as "Confidential
Information"). Confidential Information includes not only information disclosed
by the Company to Executive, but also information developed or learned by
Executive during the course or as a result of employment with the Company, which
information shall be the property of the Company. Confidential Information
includes all information that has or could have commercial value or other
utility in the business in which the Company is engaged or contemplates
engaging, and all information of which the unauthorized disclosure could be
detrimental to the interests of the Company, whether or not such information is
specifically labeled as Confidential Information by the Company. By way of
example and without limitation, Confidential Information includes any and all
information developed, obtained, licensed by or to or owned by the Company
concerning trade secrets, techniques, know-how (including designs, plans,
procedures, merchandising, marketing, distribution and warehousing know-how,
processes, and research records), software, computer programs, and any other
intellectual property created, used or sold (through a license or otherwise) by
the Company, Electronic Data Information know-how and processes, innovations,
discoveries, improvements, research, development, test results, reports,
specifications, data, formats, marketing data and plans, business plans,
strategies, forecasts, unpublished financial information, orders, agreements and
other forms of documents, price and cost information, merchandising
opportunities, expansion plans, store plans, budgets, projections, customer,
supplier, licensee, licensor and subcontractor identities, characteristics,
agreements and operating procedures, and salary, staffing and employment
information. Notwithstanding the foregoing, Confidential Information shall not
include information which (a) is or becomes generally available to the public or
is, at the time in question, in the public domain other than as a result of a
disclosure by Executive, (b) was available to Executive on a non-confidential
basis prior to the date of this Agreement, (c) becomes available to Executive
from a source other than the Company, its agents or
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representatives (or former agents or representatives), or (d) is required to be
disclosed pursuant to law; provided, that Executive shall provide the Company
with prompt notice of such required disclosure to, and Executive shall fully
cooperate with the Company to enable the Company to seek a protective order;
provided, further, that in the case of (c) above, the source of such information
was not bound by a confidentiality agreement with the Company.
(b) Protection of Confidential Information. Executive
acknowledges and agrees that in the performance of duties hereunder the Company
discloses to and entrusts Executive with Confidential Information which is the
exclusive property of the Company and which Executive may possess or use only in
the performance of duties for the Company. Executive also acknowledges that
Executive is aware that the unauthorized disclosure of Confidential Information,
among other things, may be prejudicial to the Company's interests, an invasion
of privacy and an improper disclosure of trade secrets. Executive shall not,
without the prior written consent of the Chief Executive Officer, directly or
indirectly, use, make available, sell, disclose or otherwise communicate to any
corporation, partnership, individual or other third party, other than in the
course of Executive's assigned duties and for the benefit of the Company, any
Confidential Information, either during the Agreement Term or thereafter. In the
event Executive desires to publish the results of Executive's work for or
experiences with the Company through literature, interviews or speeches,
Executive will submit requests for such interviews or such literature or
speeches to the Chief Executive Officer of the Company at least fourteen (14)
days before any anticipated dissemination of such information for a
determination of whether such disclosure is in the best interests of the
Company, including whether such disclosure may impair trade secret status or
constitute an invasion of privacy. Executive agrees not to publish, disclose or
otherwise disseminate such information without the prior written approval of the
Chief Executive Officer of the Company.
(c) Deliverer of Records, Etc. In the event Executive's
employment with the Company ceases for any reason, Executive will not remove
from the Company's premises without its prior written consent any records,
files, drawings, documents, equipment, materials and writings received from,
created for or belonging to the Company, including those which relate to or
contain Confidential Information, or any copies thereof. Upon request or when
employment with the Company terminates, Executive will immediately deliver the
same to the Company.
(d) Non-Solicitation. Executive acknowledges and agrees that
any attempt to interfere with the Company's existing employment relationships
would result is significant harm to the Company's interests. Accordingly,
Executive agrees that during his employment with the Company (whether under this
Agreement or otherwise) and for a period of one year after such employment ends
(regardless of reason), Executive will not in any way, directly or indirectly,
solicit any employee of the Company to terminate his or her employment with the
Company.
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8. Assignment and Transfer.
(a) Company. This Agreement shall inure to the benefit of and
be enforceable by, and may be assigned by the Company to, any purchaser of all
or substantially all of the Company's business or assets, any successor to the
Company or any assignee thereof (whether direct or indirect, by purchase,
merger, consolidation or otherwise). The Company will require any such
purchaser, successor or assignee to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such purchase, succession or assignment had taken
place.
(b) Executive. Executive's rights and obligations under this
Agreement shall not be transferable by Executive by assignment or otherwise, and
any purported assignment, transfer or delegation thereof shall be void;
provided, however, that if Executive shall die, all amounts then payable to
Executive hereunder shall be paid in accordance with the terms of this Agreement
to Executive's devisee, legatee or other designee or, if there be no such
designee, to Executive's estate.
9. Miscellaneous.
(a) Other Obligations. Executive represents and warrants that
neither Executive's employment with the Company nor Executive's performance of
Executive's obligations hereunder will conflict with or violate or otherwise are
inconsistent with any other obligations, legal or otherwise, which Executive may
have.
(b) Nondisclosure; Other Employers. Executive will not
disclose to the Company, or use, or induce the Company to use, any proprietary
information, trade secrets or confidential business information of others.
Executive represents and warrants that Executive has returned all property,
proprietary information, trade secrets and confidential business information
belonging to all prior employers.
(c) Cooperation. Following termination of employment with the
Company, Executive shall cooperate with the Company, as reasonably requested by
the Company, to affect a transition of Executive's responsibilities and to
ensure that the Company is aware of all matters being handled by Executive.
(d) No Duty to Mitigate. Executive shall be under no duty to
mitigate with respect to any severance or other amounts payable pursuant to
Sections 5(c), 5(d), or 5(e) hereof.
(e) Protection of Reputation. During the Agreement Term and
thereafter, Executive and the Company each agree that he or it will take no
unnecessary action which is intended, or would reasonably be expected, to harm
the other's reputation or which would reasonably be expected to lead to unwanted
or unfavorable publicity to the other.
(f) Governing Law. This Agreement, including the validity,
interpretation, construction and performance of this Agreement, shall be
governed by and construed in accordance with the laws of the State of New York
applicable to agreements made and to be performed in such state without regard
to such state's conflicts of law principles. All
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actions and proceedings relating directly or indirectly to this Agreement shall
be litigated in any state court or federal court located in New York, New York.
The parties hereto expressly consent to the jurisdiction of any such court and
to venue therein and consent to the service of process in any such action or
proceeding by certified or registered mailing of the summons and complaint
therein directed to Executive at the address as provided in Section 9(m) hereof
and to the Company's designated agent for service of process (which initially
shall be Infogrames, Inc., 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Secretary, which agent may be changed by the Company upon thirty (30)
days' prior written notice to Executive).
(g) Entire Agreement. This Agreement (including the Exhibits
hereto) contains the entire agreement and understanding between the parties
hereto in respect of the subject matter hereof and supersedes, cancels and
annuls any prior or contemporaneous written or oral agreements, understandings,
commitments and practices between them respecting the subject matter hereof,
including all prior employment agreements, if any, between the Company and
Executive, which agreement(s) hereby are terminated and shall be of no further
force or effect.
(h) Amendment. This Agreement may be amended only by a writing
which makes express reference to this Agreement as the subject of such amendment
and which is signed by Executive and, on behalf of the Company, by its duly
authorized officer.
(i) Severability. If any term, provision, covenant or
condition of this Agreement or part thereof, or the application thereof to any
person, place or circumstance, shall be held to be invalid, unenforceable or
void, the remainder of this Agreement and such term, provision, covenant or
condition shall remain in full force and effect, and any such invalid,
unenforceable or void term, provision, covenant or condition shall be deemed,
without further action on the part of the parties hereto, modified, amended and
limited to the extent necessary to render the same and the remainder of this
Agreement valid, enforceable and lawful. In this regard, Executive acknowledges
that the provisions of Sections 4 and 7 are reasonable and necessary for the
protection of the Company.
(j) Construction. The headings and captions of this Agreement
are provided for convenience only and are intended to have no effect in
construing or interpreting this Agreement. The language in all parts of this
Agreement shall be in all cases construed according to its fair meaning and not
strictly for or against the Company or Executive. The use herein of the word
"including," when following any general provision, sentence, clause, statement,
term or matter, shall be deemed to mean "including, without limitation". As used
herein, "Company" shall mean the Company and its parents and subsidiaries and
any purchaser of, successor to or assignee (whether direct or indirect, by
purchase, merger, consolidation or otherwise) of all or substantially all of the
Company's business or assets which is obligated to perform this Agreement by
operation of law, agreement pursuant to Section 8 hereof or otherwise, and the
parent, if any, thereof. As used herein, the words "day" or "days" shall mean a
calendar day or days.
(k) Nonwaiver. Neither any course of dealing nor any failure
or neglect of either party hereto in any instance to exercise any right, power
or privilege hereunder or under law shall constitute a waiver of any other
right, power or privilege or of the same right,
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power or privilege in any other instance. All waivers by either party hereto
must be contained in a written instrument signed by the party to be charged and,
in the case of the Company, by its duly authorized officer.
(1) Remedies for Breach. The parties hereto agree that
Executive is obligated under this Agreement to render personal services during
the Agreement Term of a special, unique, unusual, extraordinary and
intellectual character, thereby giving this Agreement peculiar value, and, in
the event of a breach or threatened breach of any covenant of Executive herein,
the injury or imminent injury to the value and the goodwill of the Company's
business could not be reasonably or adequately compensated in damages in an
action at law. Accordingly, Executive expressly acknowledges that the Company
shall be entitled to specific performance, injunctive relief or any other
equitable remedy against Executive, without the posting of a bond and without
limitation as to any other remedy, in the event of any breach or threatened
breach of any provision of this Agreement by Executive (including Sections 4 and
7 hereof). The rights and remedies of the parties hereto are cumulative and
shall not be exclusive, and each such party shall be entitled to pursue all
legal and equitable rights and remedies and to secure performance of the
obligations and duties of the other under this Agreement, and the enforcement of
one or more of such rights and remedies by a party shall in no way preclude such
party from pursuing, at the same time or subsequently, any and all other rights
and remedies available to it.
(m) Notices. Any notice, request, consent or approval required
or permitted to be given under this Agreement or pursuant to law shall be
sufficient if in writing, and if and when sent by certified or registered mail,
return receipt requested, with postage prepaid, to Executive's residence (as
reflected in the Company's records or as otherwise designated by Executive on
thirty (30) days' prior written notice to the Company) or to the Company's
principal executive office, attention: President (with copies to the General
Counsel), as the case may be. All such notices, requests, consents and approvals
shall be effective upon being deposited in the United States mail. However, the
time period in which a response thereto must be given shall commence to run from
the date of receipt on the return receipt of the notice, request, consent or
approval by the addressee thereof. Rejection or other refusal to accept, or the
inability to deliver because of changed address of which no notice was given as
provided herein, shall be deemed to be receipt of the notice, request, consent
or approval sent.
(n) Assistance in Proceedings, Etc. Executive shall, without
additional compensation, during and after expiration of the Agreement Term, upon
reasonable notice and at reasonable times, furnish such information and proper
assistance to the Company as may reasonably be required by the Company in
connection with any legal or quasi-legal proceeding, including any external or
internal investigation, involving the Company or any of its affiliates or in
which any of them is, or may become, a party.
(o) Insurance and Indemnification. Executive shall be covered
under any director and officer insurance policy obtained by the Company, if any,
and shall be entitled to benefit from any officer indemnification arrangements
adopted by the Company, if any, to the same extent as other senior executive
officers of the Company (including the right to such coverage or benefit
following Executive's employment to the extent such policy or benefit covers
former employees); provided, however that Executive acknowledges and agrees that
the
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Company shall not be obligated, in any way, to obtain such insurance coverage or
to adopt any such indemnification arrangements for such officers.
(p) Survival. This Agreement and the respective obligations,
rights and benefits of the Company and the Executive as set forth herein shall
survive the cessation or termination of Executive's employment with the Company
and the termination of the Agreement Term in accordance with the terms set forth
herein. In particular, the provisions of Section 5(e) and Section 7 shall
survive expiration of the Agreement Term and termination of Executive's
employment, and the provisions of Section 4 shall survive expiration of the
Agreement Term for so long as Executive remains employed by the Company.
(q) Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
taken together shall constitute one and the same agreement. Facsimile signatures
of any party will have the same force and effect as original signatures.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed on its behalf by an officer thereunto duly authorized and Executive has
duly executed this Agreement, all as of the date and year first written above.
Infogrames, Inc. EXECUTIVE:
By:/s/ Xxxxx Xxxxxxx /s/ Xxxxx X. Xxxxx
------------------------------- -----------------------------------
Name: Xxxxx Xxxxxxx Xxxxx X. Xxxxx
Title: CEO
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Schedule A
Duties and Responsibilities
1. The Executive shall have the authority and responsibility to manage and
direct, on a worldwide basis, the publishing and development operations
of the Company and its worldwide affiliates.
2. The Executive shall serve, with the Chairman and the President of the
global company of which the Company is part (the "Global Company"), on
the "global management committee" or similar functioning body should
the organization change, which has the responsibility for managing, and
setting strategy for, the Global Company.
3. In this capacity, the Executive shall work closely with the Chairman
and the President of the Global Company in managing and directing the
worldwide business of the Global Company, and share responsibility with
the President of the Company for managing the business of the Company.
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